Privy Council urges Bahamian courts to ensure access to justice

The Judicial Committee of the Privy Council has today ordered that the Supreme Court of the Bahamas re-hear Jean Rony Jean-Charles’ claim for constitutional redress.

Rony was arrested and detained by officers of the Bahamas Immigration Department on 18 September 2017, notwithstanding he had lived his entire life in the Bahamas. His family commenced legal proceedings to compel the Government to free him. However, Rony had already been taken, by aircraft, to Haiti on 24 November 2017. The Government argued that they had no power to produce him and that Rony’s application should fail. Rony’s legal team argued, in reply, that the Government’s actions had been unconstitutional in any event.

On 26 January 2018, the Supreme Court of the Bahamas ruled that Rony’s detention and expulsion from the Bahamas were unlawful, that he was deprived of his liberty, and falsely imprisoned in contravention of his constitutional rights. The Government was ordered to return Rony to the Bahamas and give him a work permit.

Upon his return to the Bahamas, Mr Rony was detained and held by immigration officers. Despite the judge’s order, he has still not been granted the right to work and is not seen or treated by authorities as a Bahamian citizen.

The Government appealed the Supreme Court decision complaining that they had not had an opportunity to adduce evidence. The Court of Appeal upheld this complaint, holding that Rony should have instituted new proceedings if he wanted to complain that his constitutional rights had been infringed.

That decision has now been overturned by the Judicial Committee of the Privy Council (JCPC).  The JCPC found that the rights enshrined in the Constitution of the Bahamas should “…be given a liberal interpretation in order to give individuals the full measure of the rights and freedoms which the Constitution confers.” The Court of Appeal had been wrong to limit Rony’s attempts to seek constitutional redress.

Whilst the JCPC agreed that the Government should have an opportunity to bring evidence to court, the JCPC noted that there seemed to be little factual dispute as to the real immigration status of Rony. The State conceded that the possibility that Rony had illegally entered the Bahamas was “speculation” there was no suggestion that the State could adduce evidence to show that Rony’s treatment had been lawful.

The JCPC allowed Mr Rony’s appeal and remitted the case back to the Supreme Court of the Bahamas, so that his application for constitutional redress could be heard.

Notes to editors

Prior to his deportation Jean Rony Jean Charles was not charged with any offence or taken to court and there was no deportation or detention order made against him under the Bahamas Immigration Act. Having lived his entire life in the Bahamas, he was entitled to citizenship under the provisions of the Constitution of the Bahamas.

In the January 2018 judgment, the Supreme Court of the Bahamas found that Rony’s constitutional rights had been infringed, in particular; his right to personal liberty (article 19(1)), his right of access to a legal representative (article 19(2)), his right to be brought before a court without undue delay (article 19(3)) and his right to enjoy freedom of movement under (article 25).

There have been considerable concerns over the treatment of Haitian migrants in The Bahamas, who have long-faced discrimination and stigmatisation, including reports that Haitians are in constant fear of being detained or deported by authorities and have difficulty securing citizenship and work permits. After the 2011 earthquake that devasted the small island, there were reports that Haitian migrants who landed in The Bahamas were being charged with illegal landing and repatriated in the same year.

Mr Rony was represented by Edward Fitzgerald KC (Doughty Street Chambers), Adrian de Froment (Serle Court Chambers), Frederick Smith KC and R. Dawson Malone, partners at Callenders & Co (of the Bahamas Bar) and Simons Muirhead Burton LLP.

The full judgment from the Privy Council is available here.